Petitioners appealed an award declaring an enquiry unfair and findings perverse. Court remanded for fresh decision without reappreciating evidence or deciding merits.
Award Part I findings on enquiry fairness and perversity quashed; matter remanded to Tribunal for fresh decision considering all materials.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1239 OF 2008
Life Insurance Corporation
of India and Anr.
Versus
Mallikarjun Laxman Manikade
and Anr.
.. Petitioners
.. Respondents
Mr.V.Y.Sanglikar for petitioners
Mr.S.M.Dange for respondents
CORAM :S.C.DHARMADHIKARI, J.
DATE:16th June 2008
ORAL JUDGEMENT:-
.Rule. Respondent Nos. 1 and 2 waive
service. By consent rule is made returnable
forthwith.
2.This petition is directed against the
Award Part I in Reference No.CGIT-2/241/05.
3.By the impugned order dated 27th
2
September 2007, the Court below has answered
three issues, whether the Tribunal has
jurisdiction, whether the first respondent is
workman and whether the enquiry is fair and
proper, so also findings therein perverse.
4.It is not necessary to go into rival
contentions as far as jurisdictional aspects
including whether respondent Nos.1 is a
"workman". No arguments have been heard by me in
that behalf.
5.Both sides confined their arguments to
issue Nos. 3 and 4.
6.For the purpose of deciding rival
contentions brief reference to the facts is
necessary.
.The statement of claim which was laid
before the Tribunal on behalf of the respondent
3
No.2 espousing the cause of respondent No.1 is
that the petitioner Corporation is sub-divided
into seven zones. The second respondent, Union
before me is concerned with the Western Zone
comprising as many as 21 Divisional Offices. The
reference by respondent Nos. 1 and 2 concerns
Mumbai Division - II. The said Division has one
of its branches at Chembur. The said branch is
under the control of Senior Divisional Manager
who is competent authority in terms of Schedule I
of Life Insurance Corporation (Staff Regulation)
1960. The services of the first respondent were
terminated with effect from 30th December 1997.
7.It was the case of the respondents that
the first respondent was appointed as an
Assistant in Class III Cadre at Mumbai Division
Office - I on 2nd May 1990. He was subsequently
promoted as Higher Grade Assistant having regard
to the seniority, merit and confidential reports.
The case of the first respondent is that he
4
addressed a letter on 10th April 1997 informing
his branch office about sickness of his mother.
He requested to grant privileged leave (PL) from
7th April 1997. This letter was claimed as not
received by the branch. Thereafter a telegram
was sent on 24th April 1997 informing the branch
office that he could not attend office due to his
mother’s sickness. He also informed the branch
office that there was nobody to look after his
mother than himself and, therefore, PL be granted
with effect from 7th April 1997. It was the case
of the first respondent that the Chembur branch
office had granted PL and the first respondent’s
salary was also drawn for that month but he could
not collect the same due to his mother’s
sickness. Later on, PL was cancelled by the
branch office. The workman informed the branch
office that he was going to resume duties from
2nd May 1997.
8.Paras 8 and 10 of the statement of claim
5
of first respondent read thus:-
"8.It is submitted that the said
workman wrote a letter to the Senior
Divisional Manager, MDO - II on 21st
November 2000 and requested to the
competent authority to send him all the
letters to his new address at 4/369/4369,
Tagore Nagar, Vikhroli (E), Mumbai 83.
His said communication was duly received
by the Divisional Office.
"10.It is submitted that the workman
had appealed on 28th September 2001 to
the Zonal Manager, Western Zone and the
said appeal was rejected by the Zonal
Manager as appellate authority."
9.In para 11 of the Statement of claim a
reference is made to the representation dated
30th October 2002 addressed to the Chairman of
6
LIC but the same being rejected as time barred.
Thereafter, another representation/ letter was
addressed by R.P.A.D. on 3rd May 2003 to the
Chairman to reconsider his earlier decision.
There is correspondence on this issue.
10.In para 15 of the Statement of claim the
first respondent being fully aware of the actions
has submitted that during his absence on 2nd May
1997, the workman was served with the charge
sheet dated 26th April 1997 for his absence from
17th February 1997 to 21st March 1997 was
mentioned. Thereafter, a reference is made to a
show cause notice received on 6th December 1997,
calling upon the first respondent to show cause
why he should not be removed from service.
Thereafter, a reference is made to the order
dated 30th December 1997, whereunder respondent
No.1 came to be terminated. In para 16 of the
statement of claim reference is made to the
absence from 7th April 1997 to 30th December
7
1997. The statement of claim, therefore,
proceeds on this basis and thereafter, there is a
justification statement. The entire enquiry
proceedings have been challenged on the basis
that the enquiry officer took an ex parte
decision. The enquiry if ever held, was a sham
show meant for first respondent’s removal. The
justification statement, thereafter proceeds on
the basis that the presenting officer had not
furnished any documents before the enquiry
officer nor was there any presentation of the
case. There were no proceedings as such held in
terms of the enquiry. The presenting officer did
not examine anyone during the enquiry. The E.O.
did not bother to know as to what documents were
given by the workman to the office and on what
basis the management decided to hold enquiry.
The justification statement runs into 11 paras
and it contains pleas not only with regard to the
enquiry but also the past performance. It is on
this basis that the reliefs have been sought that
8
the Enquiry is bad in law, unfair and violative
of regulation and principles of natural justice.
It be, therefore, set aside and subsequent
reliefs as prayed including reinstatement be
granted. This statement of claim dated 18th May
2005 is signed by the General Secy. of the
second respondent.
11.LIC - petitioner before me filed its
written statement and specifically urged that
there is no substance in the claim of the
concerned workman. A reference was made to
Chapter III of the Staff Regulations and it was
contended that it is a self contained code. The
case of the management on merits is that the
workman concerned remained absent continuously
and without permission from 7th April 1997. More
than 17 days after remaining unauthorisedly
absent, he sent telegram dated 4th April 1997
informing about the alleged sickness of his
mother. The letter dated 25th April 1997 was
9
received on 30th April 1997 promising to resume
duties on 2nd May 1997. The concerned workman,
did not resume duties on 2nd May 1997 nor sent
any intimation regarding his continuous absence
thereafter. After waiting for a month for the
employee to resume his duty, the petitioner
addressed a registered letter letter dated 3rd
June 1997 advising him to resume his duties.
This letter was returned by the Postal
Authorities with a remark "not claimed". In view
of the above conduct and continued unauthorised
absence, charge sheet was issued to the employee
on 2nd July 1997. Even the charge sheet was sent
by registered post which was also returned by the
postal authorities with the remark "not claimed".
Hence, the charge sheet was displayed on notice
board of both Divisional and branch offices, the
latter being the office where the first
respondent was posted, before his unauthorised
absence.
10
12.Thereafter, the enquiry commenced. The
E.O. issued three notices dated 3rd October
1997, 7th November 1997 and 18th November 1997 at
all the three addresses of the employee
i.e. at
Airoli, Nerul (Navi Mumbai) and Akkalkot in
Solapur Dist. All
three notices were returned undelivered by
the postal authorities with the remark left, not
claimed and not known. Similar pattern was
followed with regard to displaying of the
notices. Hearings were scheduled on 22nd October
1997, 18th November 1997 and 28th November 1997.
The first respondent did not attend the hearing.
He was specifically informed that in case he
fails to attend the proceedings on 28th November
1997, the enquiry will proceed ex parte.
Thereafter, the enquiry proceeded ex parte. Upon
submission of the findings, a show cause notice
was issued to the employee on 6th December 1997
proposing imposition of penalty of Removal from
11
service. The notice in that behalf also was sent
in similar manner and displayed as above. Since,
there was no reply within 15 days stipulated
period, disciplinary authority passed the order
imposing penalty of removal from service and
treating his absence as dies non on 30th December
1997. The final orders were also sent on the
above three addresses and the postal remark was
identical even in respect of the same. The final
order was also displayed as stated above.
13.It is stated that nearly four years after
he was removed from service, an appeal was
preferred on 28th September 2001 which was
considered and rejected on 29th December 2001. A
second appeal was also made again a year later on
30th October 2002 which was not considered being
belated.
14.After highlighting past conduct of this
employee and imposition of the penalty for
12
censure for the unauthorised absence and raising
preliminary objections to the maintainability of
reference, complete parawise reply has been given
by the petitioner to the statement of claim. It
is denied that the employee was absent because of
any sickness much less his mother’ sickness. For
all these reasons, it was prayed in the written
statement dated 23rd August 2005 that the claim
be rejected.
15.The Tribunal thus had before it the
entire version on behalf of the workman/Union and
the management. The Tribunal then framed
necessary issues and directed leading of oral
evidence, if any, by parties. Needless to
mention here that the record of the enquiry and
all documents relevant and germane thereto were
filed before the Tribunal. The petitioner
management examined one Mohan Govind Tare,
Manager (Personal and Industrial Relations)
Division II of Mumbai Office of LIC. His
13
evidence was on affidavit. The witness
reiterates the version of the management in the
written statement. He refers to the
correspondence and the compilation tendered by
the witness. There are letters which have been
addressed dated 9th May 1997, 14th May 1997, 29th
May 1997 and 3rd June 1997 pointing out and
highlighting the conduct of the concerned
workman. Thus, it was a specific case of
continued unauthorised absence, habitual ,
disregarding of office instructions and causing
prejudice to the petitioner Corporation.
Thereafter, the witness points out as to how the
charge sheet came to be served and displayed on
notice board on 19th July 1997 at 12.00 noon in
the presence of two witnesses who have signed
below the same. The report of this pasting and
the endorsement of the witnesses has also been
tendered on record. Thereafter, the enquiry
officer’s appointment is referred and a
communication by the petitioner to the first
14
respondent regarding the same. The notices which
have been referred to in the written statement
and the manner in which they were communicated
and displayed along with postal covers bearing
remarks have been tendered. The enquiry report
is also tendered so also the show cause notice
with regard to the proposed punishment. Thus,
the witness has spoken at length with regard to
the conduct of the enquiry.
16.This witness was cross examined by the
respondent Nos. 1 and 2 before the Tribunal and
the record of cross examination dated 20th March
2007 would show that the only admission is with
regard to a medical certificate submitted by the
workman of treatment taken at the clinic of
Dr.Kumawat for the period 7th April 1997 to 30th
April 1997. The suggestion that there were
further medical certificates has been
specifically denied. The witness also admits
that no oral evidence was recorded by the enquiry
15
officer considering the documents submitted by
the management. This is the only cross
examination. The cross examination in two paras
thus concludes and there is no re-examination.
17.The first respondent workman also filed
his affidavit before the CGIT. He admits that he
was absent from office from 7th April 1997 and
the office claims to have served a letter dated
3rd June 1997 asking him to resume duty. His
affidavit in lieu of examination in chief
proceeds on the basis that the order passed by
the management is without any enquiry or giving
him any opportunity though statutorily required.
Therefore, he submits that the enquiry is unfair,
unjustified, illegal and in breach of rules and
regulations and against the principles of natural
justice. There is complete silence in this
affidavit with regard to the correspondence. The
workman was cross examined by the management in
paras 17. The cross examination is on the basis
16
that his application for employment dated 2nd May
1990 is written by him and he admits the address
written on it. He was staying at the address set
out in the letter dated 31st December 1993 is
also his admission. He also admits that he has
written a letter dated 28th February 1997 from
Airoli. His version is that he was not allowed
entry from 7th April 1997. He refers to the
telegram dated 24th April 1997 and the letter
dated 2nd May 1997. He admits that no written
communication was made thereafter by him. He
admits that earlier disciplinary action was taken
against him in 1993 on the point of absentism.
He admits that on two occasions, disciplinary
action was taken.
18.Both sides filed written arguments and
that is how the above issues were considered by
the learned Presiding Officer. In the Award part
I, the issue Nos. 3 and 4 which pertain to the
enquiry being fair and proper and findings being
17
perverse or not have been answered in two paras.
It would be convenient to reproduce these paras:-
"12.As far as the enquiry and its
findings are concerned, it is matter of
record that, concerned workman did not
participate in the enquiry. It is matter
of record that, the attempts of service
of charge sheet, intimation of enquiry
and other correspondences are concerned,
were not served on concerned workman and
all returned "not claimed" or "unserved".
It is also matter of record that,
concerned workman did not participate in
the enquiry. No evidence is recorded by
Inquiry Officer of concerned workman. It
is matter of record that, enquiry was ex
parte."
13.The record proceedings reveal
that, concerned workman did not get
18
opportunity to make out his case. Even
the pleading of the concerned workman
refers that, his mother was sick and then
he became mentally sick and unable to
point out the same to first party. Even
he made out case that, by number of
correspondence he tried to intimate first
party. But record and proceedings reveal
that it is not considered by Inquiry
Officer or by the first party. So one
has to conclude that, concerned workman
did not get an opporttunity to make out
his case as well as explain about his
absenteeism. It is matter of record
that, mere absentism is the cause behind
removing concerned workman from the
employment. However, concerned workman
did not get an opportunity to explain it.
So I conclude that, there was no fair
enquiry and Inquiry Officer was not
having reasons to observe concerned
19
workman absent without any reason. In
this scenario I conclude that enquiry was
not fair and findings perverse."
19.Although, it is a part I award,
Mr.Sanglikar for petitioner relying upon the
decisions of the Supreme Court and this Court and
contends that if the award part I is totally
perverse and is vitiated by serious errors
apparent on the face of the record, then, it is
liable to be interfered with. He submits that
such findings as are rendered by the court below
have serious consequences inasmuch as de novo
enquiry will have to be held before the tribunal
and the entire process will have to be gone into
over again. The prejudice that is caused to the
petitioner is that there is no reference to any
materials much less the same reproduced by this
Court hereinabove. He submits that as to why the
enquiry proceedings are unfair and improper has
not been demonstrated by the Presiding Officer at
20
all. The learned Presiding Officer has been
influenced to a great extent by the fact that the
enquiry was conducted in the absence of the
workman and he did not participate therein.
Mr.Sanglikar criticises the award and by
contending that the learned Presiding Officer
failed to apply his mind to the aspect that the
enquiry officer had before him the entire
correspondence on the issue. The correspondence
and the postal remarks clearly demonstrate that
the letters have been received with remarks "Not
claimed" as well. Mr.Sanglikar submits that not
claimed is a postal remark which is entered into
after a packet in the name of the addressee has
been received in the concerned post office. The
postman deputed for delivery attempts to make
delivery or goes and tries to effect the delivery
but the delivery is not accepted. Thereafter,
the postal authority with the report from postman
sends an intimation to the addressee that a
packet has been received in his name and which
21
will be lying with the concerned post office for
a period specified in the intimation within which
he must collect it failing which it would be
reported by the postal authority that he has not
claimed the same. Such a procedure when followed
is good service, according to Mr.Sanglikar.
Further, the presiding officer also had this
entire material before him including displaying
of the charge sheets and other orders on the
notice board. It is in such circumstances that
the enquiry proceeding ex parte should not have
influenced the Presiding Officer’s decision.
With regard to the version of the workman that
his mother was sick and then, he became mentally
sick and unable to point out the same, has been
referred to, according to Mr.Sanglikar, without
adverting to any materials. He submits that the
finding that the workman made out a case by
number of correspondence and intimations is
vague. According to Mr.Sanglikar, the record and
proceedings including oral depositions speak
22
otherwise. Therefore, the finding that the
concerned workman did not get an opportunity to
make out his case as well as explain his
absentism could not have been recorded.
Therefore, the findings with regard to fairness
of the enquiry and perversity of the findings of
the enquiry, perversity of the conclusion of the
enquiry officer are rendered without any
reference to the oral and documentary evidence is
the sum and substance of the contention.
20.Mr.Dange appearing for the workman has
tried to support the impugned award. In his
submission, this is a part I award. No prejudice
is likely to be caused to the management and it
will get an opportunity to prove the charges once
again before the presiding officer. On the other
hand, if this Court interferes with this finding
then, prejudice will be caused to the workman.
He submits that this is not a court of Appeals
which can to re-appreciate and re-appraise the
23
materials and interfere with findings of fact in
writ jurisdiction. In such circumstances, this
petition should not be entertained.
21.Mr.Dange has invited my attention to a
letter addressed by the workman and the statement
of claim. He submits that specific pleas were
raised and considered and that is how this Court
should not interfere at this stage.
22.With the assistance of the learned
Counsel for parties I have perused the award
including the relevant documents and depositions.
My attention was also invited to the report of
the enquiry officer dated 24th October 1997. The
same is admittedly on the record of the Tribunal.
The enquiry officer has referred to, in details,
with regard to the opportunities which have been
afforded to the concerned workman. Each and
every letter, its manner of delivery and
displaying has also been referred to in report.
24
The notices of enquiry are also being referred.
The report of the enquiry officer states that the
charge sheet has been perused, records have been
assessed so also the evidence. The enquiry
officer has gone through the entire
correspondence, medical certificate thoroughly.
The workman had admitted remained absent
unauthorisedly for 33 days from 17th February
1997 to 21st March 1997. There is no prior
intimation. Many incidents have been referred to
by the enquiry officer including punishment of
censure in the past. It is not as if the enquiry
officer has not adverted to the absence of
medical grounds.
23.The deposition of the workman before the
Tribunal also should have been considered by the
Tribunal before recording any findings. The
deposition has been perused by me. In my view,
neither the statement of claim, nor the specific
case of the petitioner so also oral and
25
documentary evidence has been perused by the
Tribunal. With a view not to cause prejudice to
both sides, I had indicated to them that the
cryptic and virtually unreasoned finding can be
set aside by consent and matter can be remanded
for fresh decision to the Tribunal.
24.After the arguments were heard on the
earlier occasion, today, Mr.Dange on instructions
made a statement that the workman is not
agreeable to this course of action. In my view,
instead of this Court interfering with the
findings of fact, by adverting to each and every
material placed before the Tribunal, interest of
justice would be sub-served by remanding the
matter back to the Tribunal for a decision on
Issue Nos. III and IV. The tribunal can proceed
on the basis that findings on Issue Nos. I and
II are not interfered with. They are not under
challenge either. However, with regard to
fairness of enquiry and the findings being
26
perverse or not, the Tribunal must examine each
of the above materials and the rival contentions
in that behalf. I find much substance in the
criticism of Mr.Sanglikar that when the workman
and Union espousing his cause comes out with a
specific case which has been dealt with and
denied as well by the management, then, the
Tribunal should have referred to all these
aspects in some details. The Tribunal has not at
all adverted to the oral depositions. It had
failed to apply its mind to relevant and germane
materials. It is not clear to me as to how
non-consideration of the representation and memos
by the workman, after the enquiry and punishment,
would straight away vitiate the Enquiry. I leave
the matter here and comment nothing more. It has
failed to consider as to whether the enquiry
officer had given opportunity to the workman to
defend himself and he failed to avail of the same
or not. This was a vital aspect of the matter.
This goes to the root of the same as well.
27
Enquiries, merely because they are ex parte
cannot be brushed aside and a conclusion recorded
straight away that the workman had no
opportunity. A finding is recorded that the
enquiry is unfair because it is ex-parte.
Everything depends upon facts and circumstances
of each case and no general rule is laid down.
In the peculiar facts of this case whether the
workman failed to avail of the opportunity or not
is a crucial and relevant issue. Further,
whether the workman has during the course of the
deposition before the Tribunal placed before it
the documents proving his illness and that of his
mother, whether the workman is relying upon some
stray admission or statements in the oral
evidence or whether he has any independent
material to support his pleas, is another aspect
which has not been adverted to by the Tribunal at
all. Such cryptic and unreasoned findings on
vital issues affect the adjudication ultimately.
Tribunals are obliged to consider relevant
28
materials and they cannot disregard them without
assigning cogent and satisfactory reasons. If
this Court were to opine one way or the other,
grave loss and serious prejudice will be caused
to the workman. Therefore, considering this
aspect in mind, I had suggested remand of the
matter back to Tribunal. I have not expressed
any opinion on the merits of the matter.
25.I am conscious of the fact that this is
an award part I and challenge is to the same.
However, as has been held earlier and repeatedly,
if such findings of facts have been rendered
without adverting to any materials or are based
on no evidence or no reasonable or prudent person
would arrive at the same even at preliminary
stage, then, this court must interfere in its
constitutional jurisdiction. Failure to
intervene would cause miscarriage of justice in
some cases and more particularly in the instant
one. In this view of the matter and without this
29
Court expressing any opinion on merits, interest
of justice would be sub-served by quashing and
setting aside the findings on Issue Nos. III and
IV and remanding the matter back to the Tribunal
to decide the same afresh. The Tribunal will
render findings after adverting to materials and
giving opportunity to both sides to make their
submissions. However, it is clarified that the
Tribunal must proceed on the basis of the
available material and both sides would have no
opportunity now to lead any oral and documentary
evidence or produce materials. The Tribunal must
not be influenced by any of the earlier findings
but it must take an independent decision after
hearing both sides. Thus, Award Part I is
quashed and set aside with the above directions.
Rule is made absolute in the above terms. No
costs.
30
(S.C.Dharmadhikari, J)
3 issues framed by the court
Whether the findings of the Tribunal in the impugned award are perverse and require interference by this Court.
Whether the Tribunal rightly concluded that the enquiry was unfair and findings were perverse without referring to materials placed on record.
What is the appropriate order to serve interest of justice given the Tribunal's unreasoned findings on fairness of enquiry.
Life Insurance Corporation of India and Anr
Mallikarjun Laxman Manikade and Anr
S.C.Dharmadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court